Texas policy leaves big loophole in criminal DNA testing

DNA's net not cast as wide for Texas suspectsState doesn't take samples from all arrestees; foes say it violates privacy

CINDY HORSWELL, HOUSTON CHRONICLE

Published 5:30 am, Monday, October 18, 2010

Photo: Eric Kayne, For The Chronicle

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Jennifer Schuett of Dickinson was 8 when Dennis Bradford abducted her from her bedroom in 1990. He raped her and then slit her throat, but she survived. Now 27, she lived to see her attacker arrested, thanks to DNA taken in an Arkansas crime. He later killed himself. less

Jennifer Schuett of Dickinson was 8 when Dennis Bradford abducted her from her bedroom in 1990. He raped her and then slit her throat, but she survived. Now 27, she lived to see her attacker arrested, thanks to ... more

Photo: Eric Kayne, For The Chronicle

Texas policy leaves big loophole in criminal DNA testing

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As a growing number of states move to strengthen their DNA databanks, many investigators and crime victims in Texas say dangerous criminals may escape justice here because the state fails to require DNA sampling of most arrestees.

The federal government and at least 20 other states have adopted laws expanding their DNA databanks by taking samples from people arrested. Proponents argue such sampling ought to become as commonplace as taking a footprint of a newborn baby, or no more concerning than taking fingerprints at every booking into jail.

Yet opponents say mandatory DNA sampling of arrestees violates the individual's right to privacy and freedom of unreasonable searches. Complaining that the government is becoming "big brother," civil libertarians predict innocent people will wind up in the nation's DNA databanks.

Also, they say rapid expansion of databanks is costly and creating backlogs of DNA profiling of serious offenders.

Today, DNA profiles are much more respected for forensic identification, said Gary Molina, who manages Texas' databank. Molina said suspicion surrounding the technology 15 years ago — when football star O.J. Simpson's DNA was detected in blood at the murder scene of his estranged wife and her friend — is gone. Simpson won an acquittal after attorneys attacked the DNA lab report.

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Texas allows DNA samples taken from arrestees only if they are charged with a sexual offense or burglary — and then only after a grand jury indicts them. If those arrestees haven't been indicted, DNA is taken only if they have a past conviction for a similar offense.

"I thank God that Louisiana has a law that requires sampling of most arrestees," said Monetta Escamilla, who believes her long wait for justice in the killing and sexual assault of her 13-year-old daughter, Krystal Baker, soon will come to an end.

Kevin Edison Smith, 45, was arrested Sept. 22 while working as a contract welder at the Motiva Refinery in Port Arthur. He has been charged with killing the teen after abducting her in 1996 as she walked to a friend's home in Texas City. Baker was strangled and found dead under a bridge over the Trinity River in Chambers County.

Louisiana among first

While Escamilla's hope at catching the killer had dried up along with all the leads, a break in her daughter's case came after Smith was stopped this year for driving erratically in Livonia, La. A large stash of hydrocodone was found in his vehicle, and he was arrested for possession with intent to distribute — and thus his DNA was sampled.

It was submitted to the FBI's national databank and came back as a match to a semen specimen on Baker's dress. Smith would not have qualified for DNA sampling in Texas based on his arrest.

Livonia Police Chief Brad Joffrion praises Louisiana for being one of the first states to pass legislation seven years ago that required DNA sampling of anyone arrested for a felony as well as a few misdemeanors such as stalking.

"We started doing this after catching a serial killer so it wouldn't take so long to make an arrest," Joffrion said.

Databases have restricted access and procedures for expunging samples of anyone acquitted.

Since arrestees were added to the pool, the vast majority of Louisiana's "hits" or matches to crime scenes have come from arrestees. So far this year, 406 of the hits were arrestees while only 158 were convicted felons.

Virginia's law requiring sampling of arrestees for violent offenses and burglary was adopted in 2003, and its constitutionality was challenged.

"But our courts upheld the law. Public safety trumped privacy rights," said Pete Marone, head of Virginia's department of forensic science. In the past seven years, records show 11 percent of Virigina's nearly 6,000 hits have come from arrestees.

"Anyone wrongfully arrested becomes part of a permanent criminal database. Someone arrested for a misdemeanor might become a suspect for life," Caroline Frederickson, the ACLU Washington legislative office's director, said on the group's website.

Expansion in Texas?

Texas state Rep. Allen Vaught, D-Dallas, spearheaded expanding DNA sampling this year to adults and juveniles given probation or deferred adjudication for felony convictions. The state's database already includes all sex offenders and felons sent to prison or the Texas Youth Commission.

Asked why more arrestees are not sampled, Vaught said: "I wanted to do it, but we couldn't get the votes. It came down to cost."

The Legislative Budget Board projected that just adding people on probation would cost $2.4 million this year, which lawmakers hope to defray by charging each criminal a processing fee of up to $50 that would raise $1.7 million. He plans to push next session for not only arrestees, but serious misdemeanor offenders to be included.

Many crime victims such as 27-year-old Jennifer Schuett will join him in urging the expansion of DNA sampling.

Schuett was abducted from her Dickinson bedroom at age 8, raped, her throat slashed and then left to bleed atop a fire ant mound in 1990. The Chronicle ordinarily does not identify sexual assault victims, but Schuett approved use of her name.

Her assailant, Dennis Bradford, made a videotaped confession to the attack before hanging himself this year after his DNA from an Arkansas conviction in 1997 was finally linked to a stain on Schuett's pink pajamas.

Feeling lucky to be alive, Schuett says swabbing the inside of an arrestee's cheek is a small price to pay for saving a life.